United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION TO DENY § 2254
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE
October 12, 2016, Petitioner Robert Patterson, a prisoner in
the custody of the Florida Department of Corrections,
proceeding pro se under the mailbox rule, filed a petition
for writ of habeas corpus with exhibits pursuant to 28 U.S.C.
§ 2254. ECF No. 1. Respondent filed an answer with
exhibits on October 24, 2017. ECF No. 22. After Petitioner
filed a motion for clarification concerning the number of
issues Respondent should have addressed in the answer, ECF
No. 24, Respondent subsequently filed an amended answer on
November 20, 2017. ECF No. 25. Petitioner filed a reply with
exhibits on January 19, 2018. ECF No. 29.
matter was referred to the undersigned United States
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636 and Northern District of Florida Local Rule
72.2(B). After careful consideration of all the issues
raised, the undersigned has determined that no evidentiary
hearing is required for disposition of this case.
See Rule 8(a), R. Gov. § 2254 Cases in U.S.
Dist. Cts. For the reasons set forth herein, the pleadings
and attachments before the Court show that Petitioner is not
entitled to federal habeas relief and this § 2254
petition should be denied.
and Procedural History
January 2010, Petitioner was charged by Information filed in
the Circuit Court in and for Escambia County, Florida, with
sexual battery on a victim less than 12 years of age by a
defendant over age 18 in September 2009. He was also charged
with lewd and lascivious molestation on a victim less than 12
years of age by a defendant over age 18 in September 2009.
Ex. A at 1. On October 13, 2010, Petitioner was found
guilty as charged, but by order rendered on December 2, 2010,
a new trial was granted based on erroneous admission of
purported similar fact evidence. Ex. A at 151-59.
was held beginning on September 26, 2011. The evidence
elicited at trial, in pertinent part, was that the victim,
age nine at the time of the offense, was not Petitioner's
biological daughter but he allowed his name to be placed on
her birth certificate. He was a father figure to the victim.
The victim's half-brother is Petitioner's biological
son from the prior relationship with his son's mother.
The victim testified that during a September 2009 overnight
visit in Petitioner's home, he woke her up from a nap and
took her into the bedroom where he pulled her underwear down
and got on top of her. Ex. D at 254-55. She testified he
touched her vagina with his fingers and put them inside her.
She testified that later, during the night, when she was in
bed sleeping with her brother, Petitioner got into bed with
them. Ex. D at 257. She said he reached under her nightgown
and touched her genitals through her underwear. Ex. D at 258.
who was age 39 at the time of the offense, was found guilty
on Count One of the lesser offense of battery, and guilty as
charged on Count Two, lewd or lascivious molestation. Ex. B
at 293. On October 6, 2011, he was sentenced to 40 years in
prison, Ex. B at 326-29, and appealed to the First District
Court of Appeal. Ex. F. On January 17, 2013, the appellate
court affirmed per curiam without discussion. Ex. H. The
mandate was issued on February 4, 2013. Id. See Patterson
v. State, 110 So.3d 904 (Fla. 1st DCA 2013).
28, 2013, Petitioner filed a motion under Florida Rule of
Criminal Procedure 3.850, which was amended September 10,
2014, and March 16, 2015. Ex. I at 30-54. The post-conviction
court summarily denied relief on December 30, 2015. Ex. I at
55-62. Petitioner appealed to the State First District Court
of Appeal, and the court affirmed per curiam without
discussion on May 25, 2016. Ex. J. The mandate was issued on
July 25, 2016. Ex. K. See Patterson v. State, 193
So.3d 890 (Fla. 1st DCA 2016) (Table).
his Rule 3.850 motion was pending, Petitioner filed a
petition in the First District Court of Appeal alleging
ineffective assistance of appellate counsel, Ex. L, which was
denied on the merits on February 18, 2014. Ex. M. Rehearing
was denied on March 31, 2014. Id. See Patterson v.
State, 136 So.3d 1222 (Fla. 1st DCA 2014) (Mem).
October 12, 2016, Petitioner filed his petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in this Court
raising the following grounds for relief:
Ground One: Ineffective assistance of trial
counsel (IAC) for failing to object to use of shackles and
failing to require justification. ECF No. 1 at 5.
Ground Two: IAC for failing to correctly
convey plea offer. ECF No. 1 at 6.
Ground Three: IAC for failing to move for a
mistrial or new trial due to prosecutorial misconduct
concerning sequestered witnesses. ECF No. 1 at 8.
Ground Four: IAC for failing to move for
mistrial when the prosecutor told the jury Petitioner had
agreed the incident occurred in September. ECF No. 1 at 10.
Ground Five: IAC for failing to file a
motion for discharge under Florida Rule of Criminal Procedure
3.191(m), which requires trial within 90 days of order
granting a new trial. ECF No. 1 at 15.
Ground Six: IAC for failing to object to the
judge's statement in the presence of the jury regarding
motion for judgment of acquittal that the State had presented
a prima facie case. ECF No. 1 at 18.
Ground Seven: “Williams Rule”
violation and denial of motion for mistrial. ECF No. 1 at 21.
to 28 U.S.C. § 2254, as amended by the Anti-Terrorism
and Effective Death Penalty Act of 1996 (AEDPA), federal
courts may grant habeas corpus relief for persons in state
custody only under certain specified circumstances. Section
2254(d) provides in pertinent part:
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the
adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). See also Cullen v.
Pinholster, 563 U.S. 170, 181 (2011); Gill v.
Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011).
the ‘contrary to' clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law
or if the state court decides a case differently than this
Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S.
362, 412-13 (2000) (O'Connor, J., concurring).
“Under the ‘unreasonable application' clause,
a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this
Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case.” Id.
at 413 (O'Connor, J., concurring).
Supreme Court has explained that “even a strong case
for relief does not mean the state court's contrary
conclusion was unreasonable.” Harrington v.
Richter, 562 U.S. 86, 102 (2011). The Court stated:
As amended by AEDPA, § 2254(d) stops short of imposing a
complete bar on federal-court relitigation of claims already
rejected in state proceedings. . . . It preserves authority
to issue the writ in cases where there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts with this Court's precedents. It goes
no further. Section 2254(d) reflects the view that habeas
corpus is a “guard against extreme malfunctions in the
state criminal justice systems, ” not a substitute for
ordinary error correction through appeal. Jackson v.
Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J.,
concurring in judgment). As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.
Id. at 102-03 (citation omitted). The federal court
employs a “ ‘highly deferential standard for
evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt.'
” Pinholster, 563 U.S. at 181 (quoting
Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
a federal court may grant habeas relief to a state prisoner,
the prisoner must exhaust his remedies in state court.”
O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); 28 U.S.C. § 2254(b). The Petitioner must have
apprised the state court of the federal constitutional claim,
not just the underlying facts of the claim or a
“somewhat similar state-law claim.” Snowden
v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998)
(quoting Anderson v. Harless, 459 U.S. 4, 5-6
(1982)). Petitioner must “fairly present” his
claim in each appropriate state court in order to alert the
state courts to the federal nature of the claim. Duncan
v. Henry, 513 U.S. 364, 365 (1995); Picard v.
Connor, 404 U.S. 270, 275 (1971); O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). In regard to claims
of ineffectiveness of trial counsel, the Petitioner must have
presented those claims in state court “ ‘such
that a reasonable reader would understand each claim's
particular legal basis and factual foundation.' ”
Ogle v. Johnson, 488 F.3d 1364, 1368 (11th Cir.
2007) (citing McNair, 416 F.3d at 1302).
Court's review “is limited to the record that was
before the state court that adjudicated the claim on the
merits.” Pinholster, 563 U.S. at 181. The
state court's factual findings are entitled to a
presumption of correctness and to rebut that presumption, the
Petitioner must show by clear and convincing evidence that
the state court determinations are not fairly supported by
the record. See 28 U.S.C. § 2254(e)(1).
is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions” and
“[i]n conducting habeas review, a federal court is
limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.”
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
See also Swarthout v. Cooke, 562 U.S. 216, 222
(2011) (“[W]e have long recognized that ‘a
“mere error of state law” is not a denial of due
process.' ” (quoting Engle v. Isaac, 456
U.S. 107, 121, n.21 (1982))).
claims of ineffective assistance of counsel, the United
States Supreme Court has adopted a two-part test:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To demonstrate deficient performance, a “defendant must
show that counsel's performance fell below an objective
standard of reasonableness.” Id. at 688.
Counsel is “strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Burt v.
Titlow, 134 S.Ct. 10, 17 (2013) (quoting
Strickland, 466 U.S. at 690). Federal courts are to
afford “both the state court and the defense attorney
the benefit of the doubt.” Id. at 13. The
reasonableness of counsel's conduct must be viewed as of
the time of counsel's conduct. See Maryland v.
Kulbicki, 136 S.Ct. 2, 4 (2015) (citing
Strickland, 466 U.S. at 690).
demonstrate prejudice under Strickland, a defendant
“must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.” 466
U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the
this Court's purposes, “[t]he question ‘is
not whether a federal court believes the state court's
determination' under the Strickland standard
‘was incorrect but whether that determination was
unreasonable-a substantially higher threshold.' ”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)
(quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). Both deficiency and prejudice must be shown to
demonstrate a violation of the Sixth Amendment. Thus, the
court need not address both prongs if the petitioner fails to
prove one of the prongs. Strickland, 466 U.S. at
One: Ineffective assistance of trial counsel (IAC) for
failing to object to use of shackles and failing to require
contends, as he did in his final amended Rule 3.850 motion in
State court, that his trial counsel rendered ineffective
assistance by failing to object to the use of shackles and
failing to request the court to state the required
justification. ECF No. 1 at 5. The post-conviction court
denied the claim, citing allegations Petitioner made in a
previous post-conviction motion that counsel objected prior
to Petitioner's testimony to the use of shackles and
that, according to Petitioner's sworn allegations, the
court overruled the objection based on security concerns. Ex.
I at 57 (citing allegation at Ex. I at 11). The State First
District Court of Appeal affirmed. Ex. J.
first amended Rule 3.850 motion, Petitioner alleged that
counsel asked the court to remove Petitioner's shackles
before the trial started and when the court inquired of the
officer, he responded that it was “a security thing so
the court overruled the objection.” Ex. I at 11. The
post-conviction court held that Petitioner merely speculated
in his second amended post-conviction motion that the jurors
saw the shackles and that Petitioner failed to include
allegations in his motion stating a prima facie case that
further objection to shackles would have been successful. Ex.
I at 57.
trial, prior to Petitioner taking the stand to testify and
outside the presence of the jury, trial counsel asked the
court if Petitioner could be unshackled. ...